EU reacts to Indonesia's ban on sex outside marriage

European officials raised concerns about Indonesia's new penal code when the country's president visited Brussels last week for an international summit, a senior European official told DW.    

The EU has publicly questioned whether some of the new regulations will lead to "discrimination" when enforced, especially the criminalization of sex outside marriage and punishments for "insulting" the president or expressing views counter to the national ideology.

A senior EU official, who requested anonymity, said that the issue was raised by one European leader "in a respectful way," and in different bilateral meetings during President Joko Widodo's visit to Brussels last week for the EU-ASEAN commemorative summit, the first such gathering of European and Southeast Asian leaders.

Earlier this month, Indonesia's parliament passed a long-stalled update to the country's criminal code that includes a controversial new ban on premarital and extramarital sex, which will be punishable by a year in jail. Since same-sex marriage isn't legal, many analysts believe this represents a de facto ban on homosexuality.

Will the new code threaten civil liberties?

Andreas Harsono, senior Indonesia researcher at Human Rights Watch (HRW), said the new restrictions on free speech represent the greatest threat to civil liberties since the end of the Suharto dictatorship 24 years ago.

Once Indonesian authorities start enforcing the penal code, "insulting" a president would be punishable by up to three years in jail.

"The new criminal code has many articles that violate international human rights standards…The social fabric of this nation will suffer more damages from the new law," Harsono said. 

The US ambassador to Indonesia, Sung Kim, has warned the law could weaken international business interests in the country. "Criminalizing the personal decisions of individuals would loom large within the decision matrix of many companies determining whether to invest in Indonesia," he said in a statement reported by international media.

After some complaints by the local UN office, Indonesia's Foreign Ministry reportedly summoned Valerie Julliand, the UN resident coordinator in Jakarta, over the comments.

"These amendments could lead to discrimination against women and girls, religious and sexual minorities, and could harm the right to privacy of individuals; as well as hamper the freedoms of expression, religion or belief and association," an EU spokesperson told DW. 

"The [Indonesian] government still needs to take forward implementing regulations. We will look to see how the code is implemented," they added.

The spokesperson said these concerns have been "repeatedly raised" with Indonesian officials, including during the visit to Jakarta in late October by the EU special representative for human rights, Eamon Gilmore.

An exaggerated response?

Indonesian officials stress that the ban on extramarital sex will be a complaints-based offense, meaning the only people able to file charges are the spouses, parents or adult offspring of the alleged perpetrators. They also point out that many of the new regulations will only come into effect in 2025.

Kevin O'Rourke, a Jakarta-based analyst and principal at consultancy Reformasi Information Services, said that many of the new criminal code's provisions should be welcomed by the international community. But these elements are being overlooked amid the noise surrounding the more lurid prohibitions.

Inclusion of "morality provisions" were necessary concessions to Islamic parties in order to secure approval of other parts of the revised code that will make "jurisprudence more rational, efficient and fair," he noted. 

Many of the monetary fines in the existing code were last updated in 1960, O'Rourke pointed out. For instance, injuring a pedestrian with an automobile is punishable by either a jail sentence or a fine of 300 rupiah, a hefty sum in 1960 but now is equivalent to just €0.018 ($0.019). 

"Judges have, therefore, issued jail sentences in innumerable cases in which fines would have been more appropriate," said O'Rourke. "The new code corrects this… And it provides judges with sentencing guidelines to guard against excessive subjectivity among judges, which has been problematic."

A dent in Indonesia's image

Harsono, of HRW, reckons that the new code won't be enforced broadly. "But it will be enforced selectively. It will open an avenue for police extortion, weaponizing the law to corner estranged family members," he said. 

Indonesia's reputation has much improved since the days of Suharto, a dictator for 31 years. Between 1965 and 1966, an estimated 500,000 to 1,000,000 people were killed as part of the regime's crackdown on the Communist Party of Indonesia, many ethnic minorities and non-religious people.

Indonesia also occupied East Timor from 1975 until 1999, and some historians believe as many as one third of the now-independent country's population died during this period. Prabowo Subianto, the current Indonesian defense minister and frontrunner to become president in 2024, has been accused of involvement in some of those atrocities.

Suharto's regime fell in 1998, and Indonesia pursued an era of reform that made it one of Asia's more stable democracies. The world's largest Muslim-majority country also adopted many liberal and non-sectarian laws. 

But with the new criminal code, Indonesia "has taken another step back to the Suharto era," Rizal Ramli, a former minister, argued this week in the Diplomat.

The Jakarta-based chambers of commerce of several European countries were contacted by DW but they refrained from commenting because of the political and social nature of the new criminal code.

Senior European businesspeople in Indonesia said they were more concerned about how the new penal code impacts the country's reputation instead of the day-to-day application of the new laws.

They said tourists might not visit the country if they do not fully understand how the new ban on sex outside of marriage is applied. They were less convinced that it would deter European businesspeople or expats from living in Indonesia.

Growing trade ties between EU and Indonesia

The new bill comes at a tricky moment for the EU. Bilateral trade grew by 22% in 2021, according to European Commission data, and the EU is keen to advance talks on a free-trade agreement with the country of 270 million people.

Indonesia takes over as chairman of the 10-country Association of Southeast Asian Nations (ASEAN) next year, which means Brussels will need to keep Jakarta on side.

Moreover, trade disputes are drawing to an end. A decision by the World Trade Organization (WTO) should soon be announced after Indonesia took the EU to the trade body over Brussels' phased-in ban on palm oil imports. This month the WTO ruled in the EU's favor on its separate case against Indonesia's ban on nickel ore exports. 

"To be sure, the ban is an adverse development for individual freedoms and right to privacy — and it adversely affects Indonesia's international image — but the practical consequences will not be as severe as many seem to fear," O'Rourke said.

Edited by: Srinivas Mazumdaru